NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
No. 12-1363
UNITED STATES OF AMERICA
v.
VICTOR PALILLERO,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(Crim. No. 3-11-cr-00572-001)
District Judge: Hon. Joel A. Pisano
Before: McKEE, Chief Judge, SLOVITER and VANASKIE,
Circuit Judges
Submitted pursuant to Third Circuit LAR 34.1(a)
December 17, 2012
(Opinion filed: May 22, 2013)
OPINION

McKEE, Chief Judge.

Victor Palillero appeals the district courts judgment of sentence. For the reasons
that follow, we will vacate the sentence and remand for proceedings consistent with this
opinion.

I. FACTS AND PROCEDURAL HISTORY

Because we write for the parties, we will only refer to the facts and procedural
history to the extent necessary for our brief discussion.
Palillero agreed to plead guilty to distributing 50 grams or more of
methamphetamine, in violation of 21 U.S.C 841(a)(1) and (b)(1)(A)(viii). The
government filed a sentencing brief acknowledging that Palillero was safety valve
eligible and advocating a sentence within the advisory Guidelines range. In that brief, the
government noted that Kimbrough v. United States, 552 U.S. 85, 101, 110-11 (2007),
allowed a sentencing court to impose a sentence outside the suggested guidelines range
on policy grounds, but that the law did not require the court to do so.
Palillero contended that the methamphetamine Guideline, U.S.S.G. 2D1.1(c)(4),
was flawed and entitled to little deference, and he articulated several policy reasons for
the court to vary from it.
In rejecting Palilleros argument, the court explained:
COURT: [The Guidelines range for methamphetamine
offenses] is high. The problem is its a different drug [than
crack cocaine]. The problem is its a different substance all
together (sic) and unless and until Congress and the
Commission seek to equate it to the crack versus powder
cocaine disparity, I dont know that I have much else to do
with it.
You may be right, somewhere down the road Congress may
determine to give the same kind of treatment theyve now
given to the crack disparity, but until such time as that
happens, I think I have to reject the argument that you make.
It just doesnt, as a matter of law, translate.
That argument will be noted for the record and not accepted.
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A50.
The district court then discussed the 18 U.S.C. 3553(a) factors and sentenced
Palillero to a bottom-of-the-Guidelines-range sentence of 70 months, to be followed by
three years of supervised release. Palillero appeals.1
II. DISCUSSION
Palillero argues that his sentence was unreasonable because the district court
committed reversible error when it wrongly decided that it did not have the authority to
consider his request for a downward variance based on his policy arguments about flaws
in the methamphetamine Guideline.
In Spears v. United States, 555 U.S. 261 (2009) (per curiam), the Supreme Court
reconfirmed and succinctly explained its holding in Kimbrough:
The only fact necessary to justify such a variance is the
sentencing courts disagreement with the guidelines its
policy view that the 100-to-1 ratio [of powder to crack
cocaine] creates an unwarranted disparity. . . . That was
indeed the point of Kimbrough: a recognition of the district
courts authority to vary from the crack cocaine Guidelines
based on policy disagreement with them, and not simply
based on an individualized determination that they yield an
excessive sentence in a particular case.
555 U.S. at 264 (emphasis in original) (citation and internal quotation marks omitted).2

We review a district courts sentencing decision under an abuse of discretion standard,

[r]egardless of whether the sentence is inside or outside the Guidelines range. Gall v.
United States, 552 U.S. 38, 51 (2007). We have held that a sentence within the
Guidelines will not be accorded a presumption of reasonableness. United States v.
Cooper, 437 F.3d 324, 329 (3d Cir. 2006), abrogated on other grounds by Kimbrough v.
United States, 552 U.S. 85 (2007).
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Kimbroughs rationale is not limited to the former crack cocaine/powder cocaine

disparity. Indeed, a number of courts have exercised their authority to grant a downward
variance based on a policy disagreement with various Guidelines provisions. See, e.g.,
United States v. Grober, 624 F.3d 592 (3d Cir. 2010); United States v. Dorvee, 616 F.3d
174 (2d Cir. 2010); United States v. Arrelucea-Zamudio, 581 F.3d 142, 147 (3d Cir.
2009).
Thus, the court noted in United States v. Pape, 601 F.3d 743, 749 (7th Cir. 2010),
[w]e understand Kimbrough and Spears to mean that district judges are at liberty to
reject any Guideline on policy grounds though they must act reasonably when doing
so. (citation omitted) (emphasis in original).
Here, the district court suggested that it did not think that it had such authority
unless it was applying the Guidelines for crack cocaine. The court explained:
unless and until Congress and the Commission seek to equate
it to the crack versus powder cocaine disparity, I dont know
that I have much else to do with it.
You may be right, somewhere down the road Congress may
determine to give the same kind of treatment theyve now
given to the crack disparity, but until such time as that
happens, I think I have to reject the argument that you make.
It just doesnt, as a matter of law, translate.

However, [a]s this Court has made clear, . . . Kimbrough does not require a district
court to reject a particular Guideline range where that court does not, in fact, have
disagreement with the Guideline at issue. United States v. Lopez-Reyes, 589 F.3d 667,
671 (3d Cir. 2009) (citation omitted).
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Thus, Palilleros claim that the district court rejected his policy arguments because
it erroneously believed it did not have the legal authority to accept them is supported by
the record. Accordingly, we will vacate the sentence and remand to the district court for
resentencing. On remand, the district court is free to adopt Palilleros policy argument
and impose a different sentence if it chooses to do so, but it is clearly not required to.3
III. CONCLUSION
For the above reasons, we will vacate the judgment of sentence and remand for
proceedings consistent with this opinion.

Palillero also argues that his sentence was substantively unreasonable because the
district court failed to give sufficient consideration to the factors enumerated in 18
U.S.C. 3553(a). His main argument on the substantive unreasonableness of his
sentence is that the district court used what he contends is the flawed methamphetamine
Guideline , 2D1.1(c)(4), as the initial benchmark and driving force behind its sentence.
However, because we will vacate the sentence for the reasons stated in this opinion, we
will not address this issue at this time.
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